Source: UN Committee on the Elimination of Discrimination Against Women
9.1 Matters related to the acquisition, change, loss and deprivation of citizenship are regulated by the 2005 National Constitution and the Citizenship Act of 1992. These pieces of legislation are essentially consistent with one another in all material respects, including in their approach to women’s rights to enjoy and exercise their citizenship rights. In their articulation of issues of citizenship and women’s rights therein, these laws are also consistent with principles of Swazi Law and Custom.
9.2 Acquisition of Citizenship
9.2.1 The Constitution, provide that citizenship may be acquired in the following ways: (a)by descent –where a person is a descendant of a Swazi citizen; (b)by operation of law–where a person is generally regarded as a Swazi citizen by descent and has been declared by law to have this status; (c).by birth-where the father of the child is Swazi and in certain exceptional circumstances where the mother is a Swazi citizen; (d)by marriage–where a non-Swazi woman marries a Swazi man and lodges the appropriate declaration for acquiring citizenship accordingly; and (e)by registration –where a person fulfills stipulated criteria relating to residence in the country, character, contribution to the development of the country or the support of a Chief and three other reputable citizens.
9.3 Loss of citizenship
9.3.1 According to the Constitution, loss of citizenship may occur in two ways. Firstly, where a person is a citizen by registration, section 49 of the Constitution states that the Citizenship Board may issue an order of deprivation of citizenship on the occurrence of a number of issues, including: i.‘pursuant to a court order declaring that the person acquired a citizenship Certificate through fraudulent means or misrepresentation; ii.where the person takes any voluntary action (except marriage) to acquire another citizenship; iii.where, if the person is a non-Swazi woman who acquired citizenship through marriage, it is shown that the marriage was concluded solely for the purpose of acquiring Swazi citizenship, iv.where a person was required to renounce the citizenship of another country and has not done so; and v.where it is not in the public good that a person remains Swazi citizen.’
9.3.2 Swazi citizenship may also be lost where a Swazi citizen above the age of majority gets married to a non-Swazi, and lodges a declaration of their desire to renounce Swazi citizenship with the Board.
9.4 Women’s exercise of the right to citizenship
9.4.1 The requirements for acquiring, retaining and losing Swazi citizenship and its attendant benefits are generally not discriminatory in that the same rules apply to both women and men (with the exception that a Swazi man who intends to get married does not have to lodge any declaration with the Citizenship Board).
9.4.2 However, both the Constitution and the Citizenship Act contain provisions that are discriminatory in one key respect, that of treating women differently from men with regards the passing of their citizenship to their children and husbands.
9.4.3 In terms of the passing on of citizenship to children by virtue of birth, the Section 43 of the Constitution states the following: (1)A person born in Swaziland after the commencement of this Constitution is a citizen of Swaziland by birth if at the time of birth the father of that person was a citizen of Swaziland in terms of this Constitution. (2) A person born outside Swaziland after the commencement of this Constitution is a citizen of Swaziland if at the time of birth the father of that person was a citizen of Swaziland in terms of this Constitution’.
9.4.4 The consequence of this is that children who are fathered by non-Swazi men are not automatically citizens even though their mothers are. Swazi women are hence prevented from passing on citizenship to their children by non-Swazi men, whether born in or out of wedlock. However, for those children born out of wedlock, the constitution makes the following proviso:
‘Section 43(4). Where a child born outside of marriage is not adopted by its father or claimed by that father in accordance with Swazi law and custom and the mother of that child is a citizen of Swaziland, the child shall be a citizen of Swaziland by birth.’
9.4.5 Children in these circumstances face the risk of statelessness where they are denied or not claimed by their fathers and cannot be registered as citizens of Swaziland until evidence is obtained that their father has not claimed them in accordance with Swazi Law and Custom. The practical implication is that women have to appear before the Citizenship Board to formally apply for Swaziland citizenship in respect of their children. Women have stated that this is degrading as women have to declare the details of the circumstances surrounding the pregnancy and the subsequent denial of paternity or non-claiming of the child in accordance with Swazi law and custom by the father.While the negative impact may directly be to the child, this disadvantage arises because of the mother’s incomplete citizenship rights on an equal basis with her Swazi male counterpart whose children are automatically Swazi citizens regardless of the nationality of their mother and who has no exceptional circumstances to prove or impediments to overcome regarding this right.
9.4.6 The second dimension of the passing-on of citizenship is by virtue of marriage. In these circumstances passing on of Swazi citizenship by virtue of marriage to their non-Swazi husbands. In terms of acquisition of citizenship by marriage, both the Constitution and the Citizenship Act do not cater for the situation where the non-Swazi husband of a Swazi wife wishes to acquire Swazi citizenship by virtue of the marriage.
9.4.7 Swazi society is also patrilocal, with the attendant implication that on marriage a woman leaves her natal home and becomes a member of her husband’s family. This is also the common law consequence of marriage as in this instance women follow the domicile of their husbands. In the case where a Swazi woman then marries a non-Swazi, the expected consequence is that she assumes the identity of that family as opposed to a Swazi man who may marry a non-Swazi where the expectation is that the wife embraces the identity of her husband and is regarded through the marriage as now “belonging” to her new home. The law in this regard only envisages the acquisition of citizenship by a non-Swazi woman married to a Swazi man and address this issue in the following manner:
Section 44(1) A woman who is not a citizen of Swaziland at the date of her marriage to a person who is a citizen (otherwise than by registration) shall become a citizen by lodging a declaration in the prescribed manner with the Minister responsible for citizenship or with any Diplomatic Mission or Consular Office of Swaziland or at any other prescribed office, either before or at any time during the marriage, accepting Swaziland citizenship.
(2)A woman who lodges a declaration in terms of subsection (1) shall be a citizen from the date of her marriage, where the declaration is lodged before the marriage, or where the declaration is lodged after marriage, from date of lodgement.
9.4.8 There is no avenue for non-Swazi husbands of Swazi women to acquire citizenship by virtue of their marriage, again demonstrating the different treatment given to women and men. Even though there are other avenues for acquiring citizenship such as registration, the fact is that there are additional and different requirements in this regard which are more onerous.
9.4.9 These provisions have an adverse impact on women’s ability to enjoy their full human rights and the reality on the ground is that many women are facing difficulties with respect to their inability to pass on their citizenship either to their spouses or to their children.These difficulties include:
9.4.10 The inability to obtain travel documents in respect of children born of foreign men as this is a right attached to citizenship arises from the fact that when one registers a travel document in respect of a child, there is a requirement that one produces the child’s birth certificate. In order to record the details of the child’s father, there is a requirement for the father to be present and to supply his details himself. This is also an indication of the acceptance of the child’s paternity by the father. In the event that the woman registers the child’s birth certificate alone, the details of the father do not appear. In such cases, the surname of the child then reflects whether the child is a citizen of Swaziland or not. Where the child does not have a Swazi surname, the travel document cannot be issued. The practical implication is that the children cannot leave the country for any reason including going to the country of their father.
9.4.11 The failure to obtain residents permits in respect of husbands in cases where they reside in Swaziland. As a consequence, such husbands have difficulty securing employment and being able to conclude a variety of transactions.
9.5.Changes to the Citizenship Law
9.5.1 From the views expressed by the Chiefs who were consulted as part of compiling the report Citizenship is an issue of extreme importance to Swazis in terms of defining identity and belonging, the allegiance to all things Swazi and the continuation and eternity of the Swazi nation.Consequently, according to the Chiefs, Swazis guard citizenship jealously and cannot risk its abuse because this will ultimately weaken the nation therefore as men are charged with continuing lineage and women join their marital families –whether Swazis or non-Swazis, it would be inappropriate for women to automatically pass on their citizenship. Therefore, it is envisaged that the issue of citizenship will take greater advocacy efforts in order for the law to be changed.